The courts, not the classrooms, may be the site of the next big battles over school reform. After a decade when too many school reform plans came down from corporate board rooms and governors’ conferences, and too few originated in classrooms or local communities, some of the most drastic school restructuring plans are now emerging from courtroom battles over school financing. While these battles are shedding important light on some of the fundamental economic issues in education today, the prospects that court-ordered fiscal reform will lead to more equitable and effective school systems appear mixed, at best.
In the last two years, state supreme courts in at least four states — New Jersey, Kentucky, Montana, and Texas — have declared existing school funding arrangements illegal, primarily because of disparities in spending between rich and poor school districts. Eight other states have similar cases pending and more are in the works.
Typically the courts have found that large differences in per pupil spending violate the equal right of every student to an “effective” or “efficient” education. The Courts have traced these inequities to heavy reliance on unequal property tax bases as the source of funds for education. Poor districts with less property wealth to draw on have had much less to spend on their schools than rich districts, even when the tax rates in poor districts were higher. The courts have generally held that state governments have a legal obligation to reduce or eliminate these disparities.
In Texas, for example, a group of the state’s poorest districts, many with large black and Latino populations, sued to overturn a system in which students in the 100 most impoverished districts had less than $3,000 spent on their education each year, while in the 100 richest districts, the average was over $7,000. At its most extreme, the gap between districts was $17,000 per student per year.
In New Jersey, the spending gap between the richest and poorest school districts was over $10,000 per student, despite the fact that “the poorest districts were taxing themselves at much higher rates.” And the gap was growing. During the late seventies and eighties the difference in per pupil spending between poor, urban Camden and wealthy, suburban Princeton grew by almost 150% In Kentucky, the court declared the state’s entire school system unconstitutional, citing, among other things, unequal district spending levels ranging from $1,800 to $4,200 per student.
These numbers translate into daily injustices for school kids. Princeton’s high school science students study in seven modern, well-equipped labs and student athletes can play golf, field hockey and lacrosse in addition to baseball, basketball and football. In Jersey City, middle-school science students have no labs at all, while in East Orange, NJ, the track team practices in a second floor corridor. In rural Kentucky, elementary schools have done without music and art teachers. In one poor Texas district students study computer science by pretending to type on an artificial paper replica of a computer keyboard.
Education advocates began to bring these inequities to the attention of state courts in the 1970s after the U.S. Supreme Court had ruled (in San Antonio Independent School District v. Rodriguez, 1973) that education was not a constitutional right. Legal activists started to build cases based on state constitutions, which often contain provisions calling on states to establish and support a system of public schools. Filing on behalf of short-changed districts or disadvantaged students, these suits tried to bring some court-ordered equity to school funding.
The suits had some measure of success, but the decisions were often very long in coming. “School funding suits,” one consultant quipped, “are like a Russian novel. They are long and boring and at the end everyone is dead.” If not dead, those most victimized often had educational justice denied by interminable legal wrangling and procedural delays. Raymond Abbott was a 12-year-old student in Camden when he gave his name to New Jersey’s Abbott v. Burke suit. Last June the case ended with the state Supreme Court ruling (for the second time in less than twenty years) that New Jersey’s school funding system was unfair to the point of illegality. But during the nine years the case wound its way through the legal system, funding disparities grew sharply and when the final ruling came, it found Abbott in prison (where he expressed the hope that kids would “realize that if they stay in school and learn maybe they won’t end up here in jail.”)
Even more important, success in the courts has not necessarily translated into equality in the schools. As New Jersey’s Education Law Center, the legal advocacy group that fought and won both of the state’s key educational funding cases, points out, “Law books are filled with wonderful paper victories which have never been implemented.”
One major problem is that after the Courts have proclaimed the need for reform, they generally turn the matter over to the state legislatures. There school funding decisions are determined not by legal claims of fairness or justice, but by the relative weight of the political and economic interests that dominate the state government. These institutions are generally conservative, dominated by the organizational machines of the Republican and Democratic Parties, and rarely representative of the urban and rural poor who are on the short end of the school spending yardstick. While it has occasionally been possible to persuade a panel of judges to order reform by documenting glaring inequities in school financing, it has been far more difficult to prevent state governments from evading or limiting the impact of the court orders.
This is especially true in the present political climate, which has raised anti-tax demagoguery to new heights. Any attempt to redress inequalities in school finance requires new government spending and reform of tax policy. Yet both major political parties, with media help, have channeled a widespread popular sense of economic injustice into the narrow confines of anti-tax fever. Education spending has always been one of the first sacrificial lambs offered up on the altar of tax rebellion. In many communities, school budgets are the only government spending citizens ever get to vote on directly. (When’s the last time you got a chance to vote on whether the federal government should build another aircraft carrier or whether the city council should grant another tax abatement incentive to a real estate developer?) Although opinion polls repeatedly show that most citizens want education spending maintained or increased, it’s equally true that distrust of government bureaucracy and disgust at corruption and inefficiency have fed cynicism about government programs and spending. Economically hard-pressed middle-and working-class voters don’t want to pay more in taxes for programs run by politicians they don’t trust.
But that same popular sense of economic injustice now tapped by anti-tax posturing could also be directed against the obscene conspicuous consumption of the Reagan/ Bush era, which has seen the number of millionaires double; or against military spending which is still claiming hundreds of billions each year despite the collapse of the Cold War. Or it could be directed against the bloated profits and anti-social behavior of the banks and corporations which own and shape the country’s economy (e.g., the S & L crisis). But such positions would imply a challenge to the country’s basic economic structure and to the privileges of the small class that benefits most from current arrangements. Such a challenge, which is essential for the sort of progressive tax reform necessary to make real changes in school funding mechanisms, is not going to come from Republican and Democratic politicians in the state houses of the nation.
Instead, in the wake of court orders to restructure the mechanisms of school funding, state governments have been producing a combination of fiscal shell games and legislative stonewalling, along with some minimal steps toward progressive reform.
In Texas, the legislature greeted last year’s 9-0 state supreme court order to reform school finances with months of wrangling in a special session that failed to meet the Court’s first deadline for action. It finally adopted a weak package which the Governor vetoed. Additional court pressure to act led to passage of another bill, SB 1, which raised state school aid by less than 5% and vaguely promised to help poor districts reach an undefined minimal level. But this October the judge charged with monitoring compliance with the original decision ruled that SB 1 was “destined to fail” and “will not provide equity…The problems of our poor school districts remain as disturbing today as when this case began …The state still does not understand the evil that the court insists must be remedied.” The judge gave the state until next September to come up with yet another plan. While the legislature may re-examine the issue, the state’s education commissioner has vowed to appeal the judge’s decision and a number of politicians have begun denouncing the courts’ role as undue interference in legislative matters. Last month’s gubernatorial election of Ann Richards, a liberal Democrat who says she supports school finance reform, may alter the picture.
The New Jersey Experience
On the other hand, it may not. The recent history of state fiscal reform in New Jersey, which includes both a far-reaching, progressive Court ruling and an initiative by a liberal Democratic governor, illustrates the many obstacles and contradictions that can arise on the legal and legislative road to equity in schooling funding. For this reason, it’s worth a closer look.
When New Jersey’s school finance system was first declared illegal back in 1975, the state Supreme Court had to threaten to shut down the schools entirely in order to force the legislature to pass a state income tax and give more aid to education. The funding system that emerged greatly expanded the role of the state department of education. It gave birth to a massive statewide program of standardized testing that soon dominated — and polluted — the curriculum, and it drove classroom teachers nuts with increased paperwork and visits from state monitoring teams.
But the spending gaps the whole initiative was designed to narrow actually grew.
Suburban NJ districts also received more state aid under the new plan, which, added to a spectacular increase in suburban property values, fueled a steady rise in their school budgets. With the property-poor urban systems sinking ever more deeply into a cycle of failure, poverty and remedial mediocrity, the reform advocates at Education Law Center went back to court.
The decision handed down last June, in Abbott v. Burke, comes close to being as progressive a ruling as advocates of equity for poor schools could hope for. It was phrased in striking language that made clear the implications of the social problems the court was addressing: “The fact is that a large part of our society is disintegrating, so large a part that it cannot help but affect the rest. Everyone’s future is at stake, and not just the poor’s.”
The Court ordered the state to raise the spending level of the 30 poorest districts to the average level of the 108 richest. It expressly told the state government to “assure” that educational funding in poorer urban districts “is substantially equal to that of property rich districts,” adding that “‘assure’ means that such funding cannot depend on the budgeting and taxing decisions of local school boards. Funding must be certain, every year.” It further directed the state to maintain this parity by increasing urban funding at the same rate as the wealthiest districts are allowed to increase their budgets. And citing deeper social problems and years of deprivation, the Court ordered the state to compensate by additional spending in poor districts above and beyond parity for regular educational programs. “They need more, and the law entitles them to more…the totality of the [poor] districts’ educational offering must contain elements over and above those found in the affluent suburban districts.” According to the Education Law Center, Abbott v. Burke was “the first decision in the twenty-year history of school finance reform to establish an equality standard for the allocation of education resources to poor urban children.”
Governor Florio’s Battle
The way in which this extraordinary decision was translated into law, and the reaction of various constituencies were highly revealing. The previous Republican administration of Governor Tom Kean and Education Commissioner Saul Cooperman, which had an undeserved reputation for innovative school reform based on a program of standardized testing, alternative route certification of teachers, and state takeovers of “bankrupt, failing districts,” had fought Abbott v. Burke every step of the way. A new Democratic administration, headed by a new liberal Governor Jim Florio, a one-time high school dropout married to a former teacher, anticipated and purportedly welcomed the Court’s ruling by proposing the Quality Education Act (QEA). The QEA was part of a broader legislative package which promised eventual property tax relief in exchange for higher state income and sales taxes. The package was supposed to fund an ambitious program of increased educational spending that would pump nearly $1 billion into the state’s poorest urban school districts.
When the Abbott ruling was handed down, the QEA was already on the “fast track” in the state legislature, and with a few amendments it was passed as the state’s response to the Court. It’s a complicated bill, and its landmark changes in school funding policy will affect every district in the state. Over a five year transition period, more than a hundred of the richest districts will lose almost all state education aid. The poorest 30 will get large increases. Those in the middle will generally get more aid as the state shifts to a “foundation formula” that guarantees a minimum per pupil expenditure each year.
At the same time, local districts will have to pick up the cost of teachers’ pensions and social security payments which previously had been paid by the state. Under the old arrangement, the state, in effect, had been paying a greater subsidy to affluent districts with higher salaries, since their pension benefits were also higher. Transferring the cost to the districts will put pressure on them to hold down teacher’s salaries, since any raises, particularly at the upper reaches of the salary guide, will now translate into higher pension bills for local districts. The shift of pension costs to the districts was enough to enrage the state education association, the NJEA, and cause it to oppose the bill despite its overall increase in education spending and its unprecedented tilt toward urban areas.
Florio’s legislative package of taxes and school fiscal reform immediately put him at the center of a political firestorm. Overall, the tax package was mildly progressive in the long run, substituting higher income taxes in the upper brackets for reliance on property taxes. But the immediate net result was still higher taxes, including a 1% hike in the sales tax, and, because of the intricate formulas used to determine how much each local community should contribute to the schools, there was even a rise in some local urban property taxes. Florio quickly became the target of a fierce tax rebellion in an election year and his popularity went down the tubes. Vague promises that his plan would bring educational progress and property tax relief in the future were no match for the hostility aroused by his tax hikes in the present.
Moreover, his school spending reforms drew white-hot heat from affluent suburban districts who will face a tight squeeze from reduced state aid and the new burden of pension costs. And Florio’s plan put a cap on budgeting increases in the richest districts in an effort to put a brake on the court’s order that the state must keep all districts up with the spending pace of the richest.
Affluent districts began to complain that this plan to aid the urban poor was a levelling formula for mediocrity.
Combined with appeals to thinly veiled racist prejudices against urban schools and tales of administrative corruption and incompetence in urban districts, these complaints have produced a sharp and effective attack on Florio’s plan. The storm of protest, reflected in sharp anti-Florio voting patterns in the November elections, may yet succeed in crippling the program before it gets off the ground.
A Legislated Band-aid
At the same time, the Education Law Center and other urban advocates have criticized the plan from a completely opposite angle. They saw the QEA as falling far short of the court-ordered remedy. The formulas for achieving spending parity were hastily drawn up, unproven, and largely incomprehensible to anyone but budget planners and accountants. Some argued that the formulas would not close the spending gap, let alone compensate for the extra services and programs ordered by the court. And while the plan has generally been welcomed with open arms by city governments and urban school administrators, it does not contain the kind of school governance reforms that empower parents and teachers and might really mobilize them into active support behind it. In fact, in the absence of structural reforms like school-based budgeting and local school councils to generate grassroots change and participation, pouring millions into the hands of the existing bureaucracies will undoubtedly lead to more administrative waste, inefficiency, and corruption. And while this is not the fundamental source of urban school problems, it certainly compounds them.
What’s more, even the plan’s sizeable increase in state aid falls woefully short of the amounts needed in devastated urban school systems like those in Paterson and Newark. For example, Newark will get an additional $54 million in new state aid. The money may fund a number of useful programs and make a tangible impact. But the average school building in Newark is 85 years old, and estimates of capital costs decisions ever delivered on school funding issues translated into one of the most liberal legislative packages and still it is a bundle of contradictions completely inadequate to the task at hand.
The New Jersey experience underscores the gulf between the programs needed to really provide quality education to all the nation’s children and the plans likely to emerge from court-ordered fiscal reform. It is a classically liberal formula. It offers more money, though not enough. It’s better than the supply-side schooling fantasies of the Republican right, which wants to privatize education on a competitive, market basis, and let the capitalist economy do for education what’s its done for health care and housing. But even most liberal plans like Florio’s are light years away from the fundamental, democratic, bottom-up, structural change needed to create effective, adequately-funded schools in the service of local communities.
To really make good on promises of educational excellence and equality would take the kinds of sums poured into the military in recent decades, tens of billions of dollars over many years. The Committee for Education Funding, an umbrella group of education lobbies, says there is a documented need for $25 billion in construction and renovation of facilities alone, excluding higher education. Only a national effort can generate that kind of funds, yet during the last decade federal aid to education dropped about 20 %. A study by the Economic Policy Institute released last spring found that, measured as a percentage of gross national product, the US is spending less on pre-college education than 14 other industrial nations. To bring the US up to the average level of the other nations studied, the US would have to raise its spending by $20 billion a year — about twice the annual budget of the Department of Education.
Augustus Hawkins, the recently retired chair of the House Education and Labor Committee, said the study “graphically confirms that our national commitment to educating young people remains more rhetorical than real.” Hawkins had introduced the “Fair Chance Act” which would require states to equalize per pupil funding within five years. If they didn’t, federal aid would be given out in a way that promoted equalization. The measure also calls for new educational spending of $500 million to $1 billion a year. It’s probably among the most progressive school finance bills ever introduced in Congress, but it, too, is far short of what’s needed and, as Hawkins said in introducing it, “I don’t expect it to pass” anytime soon.
The on-going campaign to bring greater equity to school finance will continue into the 90s. In New Jersey, Kentucky, Texas and elsewhere it will hopefully produce a greater measure of fairness than has existed up till now. But to fully succeed, the effort will take more than legal and legislative pressure. Judicial decrees which proclaim the ideal of a system in which all children are guaranteed equal opportunity are certainly welcome. But it’s also a real fact of life that our society is organized at every turn to provide different futures to different people on the basis of race and class.
Disparities in school funding are just one expression of this persistent inequality. Moreover, the forty-year history of the struggle for racial justice in education proves that legal and legislative victories are limited — and reversible — when they are not accompanied by basic social change and the empowerment of disenfranchised groups. Equity in school funding is a goal worth fighting for, but, like most solutions to the fundamental problems facing our schools, it is likely to be won only as part of a broad movement for social justice that changes the priorities and the structure of our nation.